'Not Merely There to Help the Men': Equal Pay Laws, Collective Rights, and the Making of the Modern Class Action

Abstract

Why, in a nation thought pervasively committed to “adversarial legalism,” did mass litigation and, in particular, the class action lawsuit not emerge as significant regulatory tools until at least the 1970s? Standard answers point to New Deal faith in bureaucracy, or an Advisory Committee that was not moved to amend Rule 23 until mounting docket pressures and the desegregation cases of the 1950s and 1960s forced its hand. This Article challenges these accounts by framing the modern class action’s emergence as part of a broader mid-century battle over how to conceptualize collective rights within the emerging New Deal state. Using the untapped archival records of a remarkable lawsuit brought by 29 female factory workers against General Motors in 1937 claiming unequal pay and the heated state- and federal-level legislative campaigns to enact pay equity laws it spurred, this Article presents novel evidence that labor unions killed the earliest effort to build American anti-discrimination law around the class action. Working against dozens of bills providing for class action authority, damages multipliers, and attorney’s fees, unions instead pushed the new pay equity laws into an anemic administrative system of regulation because they saw class actions as an existential threat to the New Deal system of labor relations built around collective bargaining.

Recovering this history yields two kinds of insights. First, it allows us to imagine alternative pathways in the continuing American struggle to combat workplace discrimination. Indeed, a more potent regulatory response to gender discrimination built around class actions of the modern sort could have fundamentally altered the American industrial order and women’s place in it. Second, the early history of the pay equity movement offers an especially clear example of how the tensions between a labor-driven vision of collective rights and one built around adversarial, aggregated litigation of workplace disputes have shaped the evolution of the American regulatory state. That history remains highly relevant today as the Supreme Court, in a trio of cases asking whether the National Labor Relations Act bars class action waivers in arbitration agreements, must once more reconcile American labor law and the class suit.